Fisher v. University of Texas at Austin: A Word from our Friends

Amicus curiae briefs - aka "friend of the court" briefs - are always an interesting read.  Here are two that are significant for the SCA-5 issue:

Here's the brief filed by the University of California.  And below are some excerpts that may be of interest:

Page 4:

California has adopted a number of different strategies in an attempt to reverse that decline in underrepresented minority students, including expanding its outreach program to secondary schools, incorporating a broader program and more comprehensive set of admissions criteria, adopting 'holistic' review of applicants, decreasing the weight given to standardized tests, and admitting a specified percentage of the top graduates from each high school under an 'Eligibility in the Local Context' program similar in certain respects to UT's 'Top Ten Percent' Program.  To date, however, those measures have enjoyed only limited success.  They have not enabled the University of California fully to reverse the precipitous decline in minority admissions and enrollment that followed the enactment of Proposition 209, nor to keep pace with the growing population of underrepresented minorities in the applicant pool of qualified high school graduates.  These effects have been most severe and most difficult to reverse at the University's most highly-ranked and competitive campuses. 

The University of California's experience establishes that in California, and likely elsewhere, at present the compelling government interest in student body diversity cannot be fully realized at selective institutions without taking race into account in undergraduate admissions decisions.

Pages 10 to 12 (discussing campus racial climate):

UC campuses, like UT, administer a biennial survey to undergraduates in which they are asked, among other things, whether they feel students of their race/ethnicity are respected on campus.  ... In many cases, students' responses to the question correlate directly with whether the representation of underrepresented minority students on campus approaches critical mass.  ...  In short, where critical mass is not achieved, the campus racial climate is likely to be significantly less hospitable to minorities.  ...  The concern about a welcoming climate for all racial and ethnic groups on campus is part of a broader commitment by UC and other public institutions to serve the full range of their citizenry, from all cultural, racial, ethnic, geographic, and socioeconomic backgrounds.

[And incidents like the UCI fraternity video depicting blackface!]

Page 15 to 16 (discussing UC admissions standards)

The Master Plan for Higher education of the State of California provides that the University of California should educate freshmen from the 'top one-eight' (12.5 per cent) of all graduates of California public high schools.  To identify these students, the University of California promulgates minimum eligibility requirements that both specify a floor of preparation needed to pursue study at UC and also function as an entitlement: any high school graduate who meets these requirements is guaranteed a place at UC - although not necessarily at the campus nor in the major of his or her choice.  At the same time, because demand for admission exceeds enrollment capacity at most UC campuses, the campuses over the years have developed selection criteria (such as consideration of high school grade point average, test scores, and other evidence of academic promise) to choose which UC-eligible applicants they will admit.  These criteria function as a second, and generally more demanding, set of requirements that applicants to most of the campuses must meet.

 Pages 20 to 22 (discussing the Outreach Task Force strategy as a response to Prop 209)

[Board of Regents] directed the formation of a task force on academic outreach, the goal of which was to develop proposals for new directions and increased funding to increase the eligibility rate of economically disadvantaged and other applicants.  ... Consistent with Proposition 209, UC's outreach programs operate in a race-neutral fashion.  To be eligible for these programs, applicants must be from low-income families or those with little or no previous experience with higher education, or attend a school that is educationally disadvantaged.

[Footnote 32]  As the minority enrollment figures discussed below make clear, policies that increased the enrollment of low-income students do not serve as an effective 'proxy' for race and ethnicity.

Pages 23 to 24 (discussing the ELC program which was a response to Prop 209)

... effective for students entering the University in 2001, the Board of Regents modified its existing eligibility policy to add a 'top 4 percent' program, under which the top 4 percent of the eligible students in each California public high school were designated as Eligible in the Local Context ('ELC').  Effective for students entering UC as freshmen for fall 2012, the Board of Regents expanded the ELC program to the top 9 percent of eligible California high school graduates.   ... The ELC program has been successful in increasing interest and applications from students at high schools that traditionally sent few students to the University.  However, because the State of California has few if any high schools with student bodies composed entirely of minorities, it has not substantially increased the diversity of the pool of students considered eligible for UC.

Pages 25 to 28 discuss the use of a "holistic review" in selecting students and pages 28 to 29 discuss the reduced emphasis on standardized test scores.

Page  29 sums up the results of these new tools:

While these and other measures have enjoyed some limited success, particularly at UC's less selective campuses, the unfortunate reality is that the University's experience continues to support the conclusion it reached a number of years ago: 'in a highly selective institution, implementing race-neutral policies leads to a substantial decline in the proportion of entering students who are African American, American Indian, and Latino.'

Page 32 (after running through the numbers for African-American and Latino students):

These figures are troubling, because they call into serious question whether it is currently feasible without the careful and limited application of race-conscious measures to achieve the level of diversity of underrepresented minority students that this Court has recognized as a legitimate objective in the context of higher education.

Page 33 to 34 (discussing under-representation in graduate programs):

In particular, business schools, which play an influential role in shaping tomorrow's business leaders, have very low proportions of underrepresented minorities, and UC's business schools compare poorly in that respect to similar programs nationally.  Systemwide, UC enrolled fewer minority students in business (4.5 percent) than did comparable programs nationally (12.8 percent).  In California, where an estimated 46.4 percent of the 2011 population is Latino/Hispanic, African American and American Indian, recent entering classes of MBA students at UC campuses have averaged only one to two percent African American and three to four percent Latino students.  Indeed, during ten of the last eleven academic years, two or more of UC's six business schools enrolled zero African Americans.  ... Entering law school classes in recent years have averaged only three to four percent African American, with one UC law school in 2009-2010 reporting only ten African American students in a student body of over 600, considerably below the numbers in the years immediately before Proposition 209.

Here's the brief filed by 80-20 and some other organizations opposing affirmative action.